Schuler v Central Sydney Area Health Service

[2009] NSWSC 523

CITATION:	Schuler v Central Sydney Area Health Service [2009] NSWSC 523
HEARING DATE(S):	24/04/09
JUDGMENT DATE :	1 June 2009
JUDGMENT OF:	Patten AJ at 1
DECISION:	See paragraph 44
LEGISLATION CITED:	Civil Procedure Act 2005
CASES CITED:	General Steel Industries Inc v Commissioner of Railways (1964 112 CLR 125 at 129
PARTIES:	Karen Linda Schuler - Plaintiff/Applicant Central Sydney Area Health Service - Defendant/Respondent
FILE NUMBER(S):	SC 020507 of 1997
COUNSEL:	Mr D Hirsch - Plaintiff/Applicant Mr D Davies SC with B Burke- Defendant/Respondent
SOLICITORS:	Rishworth Dodd & Co - Plaintiff General Insurance Law Department - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CIVIL LIST

Patten AJ

1 June 2009

No: 20507 of 1997

Karen Linda Schuler – Plaintiff
v
Central Sydney Area Health Service - Defendant

JUDGMENT

1 Before the Court is a motion by the Plaintiff whereby she seeks leave to amend her Statement of Claim, in effect by filing a Second Further Amended Statement of Claim, and leave to administer interrogatories.

2 The proceedings were commenced as long ago as 1997 and in substance assert that as a consequence of the Defendant’s breach of duty the Plaintiff who, in the absence of such breach would have sought to abort her foetus, gave birth to a son, Alexander, with the very disabling syndrome, Trisomy 18, known as Edwards Syndrome. The Plaintiff seeks damages, which include the direct and indirect financial cost of having to care for a handicapped child.

3 It was admitted on the pleadings that at all material times the Defendant was responsible for the acts and omissions of the staff servants and agents of King George V Memorial Hospital in Camperdown NSW (the hospital).

4 The document which the Plaintiff seeks leave to file as a Second Further Amended Statement of Claim is annexed in draft to the affidavit of the Plaintiff’s solicitor, Mr Brian Dodd, sworn 25 September 2008. Mr Dodd’s affidavit explained the perceived need for the amendment in these terms:

“2. One of the issues in dispute in this case is whether the plaintiff, who was 35 years old at all material times, was a woman of “advanced maternal age”.
3. Related to the above is the issue of what routine blood tests should have been ordered in view of the plaintiff’s age and specifically whether these test included a test for alpha fetoprotein (AFP).
4. These issues are pleaded in paragraphs 15 and 18 and 53 of the Further Amended Statement of Claim (in respect of the plaintiff’s attendance at the hospital when she spoke with Dr King and Dr Toma 13 May 1994) and in paragraphs 21 and 22 and 53 (in respect of the plaintiff’s attendance at the hospital when she spoke with Dr Andrew Child on 18 May 1994).
5. The defendant was directed by the court to respond to a statement of issues prepared by the plaintiff. The response was served on 8 August 2008 and filed in court on 11 August 2008.
6. In response to point 5 of the statement of issues (in respect of the 13 May 1994 attendance) and point 12 of the statement of issues (in respect of the 18 May attendance) the defendant said:
The defendant disputes that as at 13 May 1994 public patients aged 35 years fell within the concept of “advanced maternal age”. The defendant relied on the hospital’s standard practice at the time which was that women who were public patients and aged 35 years were not routinely referred for triple screen testing. The defendant further relies upon the then current NSW Department of Health Policy that triple screen testing and amniocentesis were only offered to women who were public patients aged 37 years and over.
7. The question of whether the plaintiff ought to have been offered the “triple test” on 13 May or 18 May 1994 is very important in this case. It is the plaintiff’s case that had such a test been done it probably would have demonstrated an increased risk of genetic abnormality and this would have led to counselling and termination of the pregnancy.
8. Another issue of importance is whether the AFP test that was supposed to be done on 13 May but was not done would have yielded an abnormally low result. The evidence is to the effect that the AFP test was supposed to be a routine test for neural tube defects and not a test for genetic abnormalities – even though the AFP test is one of the three tests that comprise the “triple test” for genetic abnormalities. It is the plaintiff’s case that had an AFP test been done it probably would have demonstrated an abnormally low result and this would have led to counselling and termination of the pregnancy.
9. A factual issue on this latter point is whether the defendant knew or ought to have known in May 1994 that a low AFP result (even though done as a test for neural tube defects and not as part of the “triple test” for genetic defects) was associated with genetic disorders and, if it did know, how the defendant communicated this fact through its pathology reporting.
………………………………….
12. The Further Amended Statement of Claim does not specifically describe the “routine blood tests“ for women of “advanced maternal age” as a “triple screening test” or “triple test”. Notwithstanding this, the defendant through its response to the issues in dispute clearly understands that the issue on this point is whether the “triple test” was routinely available for women of advanced maternal age.”

5 It is appropriate that I mention briefly the history of the Plaintiff’s pleadings which commence with her Statement of Claim filed on 29 May 1997. It is not altogether easy to discern from this document the precise breaches of duty of care alleged but it seems to me that they included:

That in the circumstances peculiar to the Plaintiff’s age, health, and emotional state she was given inadequate counselling and advice as to the option of aborting her foetus.
That the Defendant failed to discuss with the Plaintiff the significance of an abnormally low result produced by the Alpha Foetoprotein (AFP) test administered on 11 June 1994.
That the Defendant failed to inform the Plaintiff that because of her age she was at particular risk of giving birth to a child with chromosal abnormalities, particularly Trisomy 18 and Trisomy 21.
That the Defendant failed to terminate the Plaintiff’s pregnancy when she first attended the hospitals.
That the Defendant failed to administer an AFP test when the Plaintiff first attended the hospital.
That the Defendant failed to advise the Plaintiff to undergo in a timely fashion further testing and an amniocentesis.

6 On 9 July 1997 an Amended Statement of Claim was filed joining Dr Grahame Vaughan, an obstetrician, as Second Defendant. In the Amended Statement of Claim there was no material difference in the allegations of breach of duty against the Defendant.

7 A Further Amended Statement of Claim was filed on 5 September 2006 deleting Dr Vaughan from the proceedings. It pleaded that the Plaintiff first came under the Defendant’s care on 13 May 1994 at approximately 18 weeks gestation upon which date the Defendant “arranged for (but did not actually perform) routine blood tests for women of “advanced maternal age”. It also alleged in paragraph 18(c) that the Defendant on 13 May, 1994 “did not perform and/or ensure that standard blood tests for women of “advanced maternal age” (including a test for Alpha Feto Protein (AFT)) were performed”.

8 The pleading went on to assert:

“37. On 8 June the hospital performed and on 9 June analysed the routine antenatal blood tests for women of “advanced maternal age” that were originally arranged for on 13 May but not done on that day.
38 The routine blood test included
a. Rubella (German measles)


b. VDRL (Venereal Disease Research laboratory test for Syphilis)

c. AFP (Alpha Feto Protein test for neural tube defects and genetic disorders).
39. The hospital knew on 9 June that the plaintiff’s AFP result was reported by the hospital’s laboratory as “abnormal”.
40 The plaintiff’s AFP test was abnormally low.
41. The abnormally low AFP result indicated an increased risk of significant genetic disorders: Trisomy 18 (Edward’s Syndrome) and Trisomy 21 (Down Syndrome).
42. The hospital did not on 9 June or at any time before 16 June
a. seek to determine the significance of the AFP test result reported as “abnormal”
b. learn that the AFP test result was abnormally low, and/or
c. advise the plaintiff in relation to the blood test result.
43. The plaintiff was discharged from the hospital on 16 June.
44. The plaintiff learned of the AFP test result reported as “abnormal” at the time of her discharge and queried its meaning.
45. The hospital advised the plaintiff that it did not know what the AFP test result meant but reassured her that there was nothing to be concerned about.”

9 Amongst the particulars of contractual breach or breach of duty by the Defendant, the following matters were particularised:

“b. (In May 1994) failed to perform and /or ensure that standard blood tests for women of “advanced maternal age” (including a test for AFP) were performed.

e. Failed to ensure that routine antenatal blood test for women of “advanced maternal age” (including a test for AFP) were done or done as soon as soon as possible after admission on 4 June.

f. Failed to determine the significance of the AFP test result reported as “abnormal” on 9 June.

g. Failed to learn that the AFP test result was abnormally low.
h. Failed to properly advise the plaintiff in relation to the abnormal AFP result as soon as the result was discovered.

i. Failed to properly advise the plaintiff in relation to the abnormal AFP result when specifically queried about this by the plaintiff on 16 June.

j. Reassured the plaintiff that there was nothing to be concerned about regarding the abnormal AFP result when it knew or ought to have known that this was not true.
k. Advised the plaintiff that by June it was too late and therefore impossible to terminate the pregnancy when it knew or ought to have known that this was not true.
l. Failed to advise the plaintiff that a termination of the pregnancy could be performed in June.”

10 The proposed Second Further Amended Statement of Claim substitutes for 18(c) quoted above the following paragraph:

“On May 13 the hospital
c. did not

i. perform and/or ensure that a test for Alpha Feto Protein was performed.
ii. advise the plaintiff that because she was a woman of “advanced maternal age” she could have a “triple test” to test for genetic abnormalities.”

11 It also makes a corresponding alteration to the particulars of breach.

12 The Defendant represented before me by Mr D Davies SC with Ms Burke, accepted that the amendment to the Statement of Claim sought would not cause prejudice but nevertheless opposed it on the grounds that it raises issues which would potentially significantly increase the length and expense of the trial and are, in any event, futile as being doomed to fail. In the latter connection, the principles expressed by Barwick CJ in General Steel Industries Inc v Commissioner of Railways (1964 112 CLR 125 at 129 are applicable:

“The test to be applied has been variously expressed; ‘so obviously untenable that it cannot possibly succeed’; ‘manifestly groundless’; ‘so manifestly faulty that it does not admit of argument’; ‘discloses a case which the Court is satisfied cannot succeed’; ‘under no possibility can there be a good cause of action’; ‘be manifest that to allow them’ (the pleadings) ‘to stand would involve useless expense’.”

13 Much medical evidence was put before me by both parties in the form of reports and learned articles. The material included reports of Professor H S Cuckle, Professor of Reproductive Epidemiology at the University of Leeds UK, an “internationally acknowledged expert in antenatal screening, particularly for chromosomal abnormalities”; Mr Dale Wright, Cytogenetics Services Manager, Sydney Genetics, Sydney IVF; Dr Robert Ford, Specialist Obstetrician and Gynaecologist; Dr Jonathon M Morris, Senior Lecturer University of Sydney, Specialist in Maternal Fetal Medicine; Dr Fergus Scott, Obstetrician; Dr Richard G Ryall, Director of the South Australian Maternal Serum Antenatal Screening Programme; Dr Robert Lyneham, Obstetrician and Gynaecologist, Clinical Lecturer University of Sydney and Visiting Medical Officer and Head of Department of Gynaecology at the hospital; Dr Brian Peat, Director of Obstetrics University of Adelaide and Professor John Carey, Vice Chairman Department of Paediatrics, University of Utah.

14 Mr D Hirsch, counsel for the Plaintiff, submitted that important to these proceedings is the statement by Professor Cuckle

“I have been asked to give an opinion about two serum screening tests, AFP alone and the so called “triple” test, comprising serum AFP, uE3, and hCG or free â -hCG. The former is principally used to screen for neural tube defects (NTDs) and the latter for Down syndrome (DS). However, the former can also be used to screen for DS. Moreover, both can also incidentally detect Edward’s syndrome (ES) or can be used to actively screen for ES (see below)
Screening and prenatal diagnosis of chromosome abnormalities.
There is a fundamental difference between screening and diagnostic tests, despite the fact that the same terms are used to describe their results: “true’, ‘false’, ‘positive’, ‘negative’. The aim of screening is limited to the identification from among apparently healthy individuals of those at high enough risk of a specific disease to warrant further investigation. In the context of chromosomal abnormalities these investigations involve hazardous invasive procedures – chorionic villus sampling, amniocentesis and occasionally per-cutanious umbilical cord sampling – to obtain material for prenatal diagnosis. Thus screening does not aim, of itself, to make a definite diagnosis, but rather to ration the use of procedures that would be too hazardous and tests that would be too expensive to offer without prior selection.”

15 Mr Hirsch referred to the opinion of Dr Peat that the Plaintiff would have been considered as of “advanced maternal age” and his comment about the administration of tests:

“Karen should have had the rubella and VDRL as early in pregnancy as practicable. In this case at least as early as the 13.5.94, when other blood tests were performed. If the aFP were being performed for neural tube defect screening then it should have been performed between 15 and 20 weeks. In practice this would have been on the 13.5.94 with the rest of the tests. Unfortunately these were ordered by a junior medical officer (I suspect) and only the basics ordered.”

16 Later, in his report to the Plaintiff’s solicitors dated 16 November 2006 in answer to a question whether if the AFP test had been administered on 13 May the result was likely to have been abnormally low, Dr Peat responded:

“It is not possible to answer that question. There was no reference range for >22 weeks. If the blood had been taken at 20 weeks the MOM would have been about 0.5. However the AFP continues to rise after 20 weeks so that at 22 weeks Karen’s level represents at or slightly less than 0.5 MOM. This is low, consistent with a chromosomal problem such as Trisomy 18 but by no means diagnostic.”

17 The submission proceeded that as the AFP test administered at 22 weeks gestation demonstrated a low result, in accordance with Dr Peat’s opinion, it would have been even lower if administered at 18 weeks gestation and would have constituted an indication for further tests, the low result being consistent with a chromosomal problem both Trisomy 18 and Trisomy 21. Reference was made to the article by Dr Fergus Scott and others at the hospital published in 1995, “Maternal Serum Screening and Routine 18–week Ultrasound in the Detection of all Chromosomal Abnormalities”.

18 The article recorded that maternal serum screening has been available at the hospital since July 1992 and that lower levels of AFP “have been found in Down syndrome affected pregnancies”. It added:

“During prospective studies assessing serum screening, Down syndrome and other chromosomal abnormalities have been detected”.

19 Mr Hirsch referred to the statement in paragraph 30 of the affidavit of Ms Karen McMahon, solicitor for the Defendant, sworn 13 March 2009. After referring to the opinions of a number of experts, she continued:

“Additionally, I am informed by Dr Child and verily believe that the purpose of recommending the triple screen test and alfa feta protein test between 15-17 weeks gestation is to allow a two week period to obtain results and if those results indicate further testing is required such as an amniocentesis, the amniocentesis can be conducted at around 17-19 weeks gestation so results can be obtained prior to the 20 week gestation period. “

20 Mr Hirsch said that the significance of Dr Child’s reference to a 20 week gestation period is that this, on the evidence, was about the latest the foetus could be aborted safely and without difficulty. He contended that the Defendant had a duty to perform the AFP test at the first available opportunity so as to leave sufficient time to obtain the result of other tests, and an amniocentesis if indicated, while there remained the opportunity to abort the foetus safely. I interpolate that, on the evidence, an amniocentesis of the amniotic fluid surrounding the foetus provides an accurate indication of some genetic disorders.

21 In this case, so Mr Hirsch submitted, the lateness of the AFP test in effect foreclosed the possibility of the more diagnostic amniocentesis being performed until it was too late to perform a safe abortion.

22 The case is complicated by the fact that ultimately Alexander was shown to have “mosaic” Trisomy 18, the significance of which being that there was not a genetic abnormality in every cell. As a consequence, even an amniocentesis test may not necessarily have revealed the abnormality, a subject upon which there was evidentiary conflict. Dr Ryall said in his report of 20 May 1997:

“Had Ms Schuler had an amniocentesis I believe that the condition of mosaic trisomy 18 would have been diagnosed in her child, although not certainly so. Exact data on detection and miss rates for this testing are outside my area of expertise and I must refer you to a cytogeneticist for this information.”

23 Professor Carey put it slightly differently on 12 April 2006:

“Second, because of the origin of amniocytes being different from fibroblasts in the skin, I differ on this point with the doctors whether or not amniocentesis would have detected trisomy 18 mosaicism when Alex was in utero. I believe that this is a reasonable possibility, even though there is no way in which I can with any accuracy predict the magnitude of the probability.”

24 In relation to the Triple Test viewed independently of the AFP test, Mr Hirsch submitted that it should have been routinely offered to the Plaintiff given her “advanced maternal age”. He submitted that the hospital in fact recognised her as such, although he conceded that, in 1994, guidelines issued by the Department of Health stipulated the age as 37, altered subsequently to 35, but not until 1997. He referred to the letter annexed to the affidavit of Ms McMahon from Dr Scott to the Plaintiff’s then solicitors on 15 March 2001 which ended with the words:

“So the policy at King George V Hospital was to offer invasive prenatal testing (CVS or amniocentesis) to women at or over 35 years of age. Serum screening was not routinely offered to women over 35 year of age, but was occasionally used.”

25 Upon the issue of futility, Mr Hirsch accepted that no test available in 1994 was diagnostic for mosaic Trisomy 18. However, he submitted that an AFP test conducted at about 18 weeks gestation would have returned a low result because the test actually conducted about four weeks later produced a low result. This, so he submitted, would have led to counselling and further testing with the probable result that the Plaintiff would have sought an abortion. Although he conceded that the evidence in support of the Plaintiff’s case was not all one way, he submitted, in effect, that nonetheless it did not fit the criteria established by General Steel.

26 Mr Davies, in opposing the relief sought, pointed out correctly that the Plaintiff was of about 18 weeks gestation when she first came to the hospital in mid May 1994. He also said that it was “only in the context of the allegations made against Dr Vaughan that medical reports were obtained from the plaintiff’s solicitor and Dr Vaughan’s solicitor about maternal screening and the triple test”, and that “no allegations were made in the Amended Statement of Claim concerning the maternal screening and the triple test because that was an issue between the other parties”.

27 With respect, however, in light of what I have earlier said about the Statement of Claim and the Amended Statement of Claim, I do not think it can fairly be said that issues concerning maternal screening and the desirability of further testing were not always a live issue against the Defendant.

28 However, Mr Davies’ principal submission was that the Plaintiff is unable to establish to a General Steel level that the Triple Test would have disclosed anything relevant about the Plaintiff’s foetus. His argument conceded that amniocentesis may have identified a genetic disorder but pointed out that amniocentesis is in fact the third stage, the first stage being the AFP test and the second the triple test. It would only be, so he contended, if the triple test disclosed the potential for mosaic Trisomy 18 that amniocentesis would have been carried out, by which time the gestation period would have exceeded 20 weeks, effectively the cut off point for a termination.

29 Referring to the medical evidence, Mr Davies first took me to the passages quoted above from the reports of Professor Cuckle whom he acknowledged as a world authority. There was also reference to the particular difficulty in prenatal diagnosis of mosaic Trisomy 18 following amniocentesis:

30 He referred to answers given by Professor Cuckle to specific questions. In relation to UK practice in 1994, he had said:

“The most widely used screening test for Down’s syndrome was the Double Test of free b-hCG and AFP. A relatively small number of centres used the Triple Test. No-one was carrying out risk screening for Trisomy18 at that time since the first publication suggesting the approach came out in late 1994. Some centres may have been using a cruder method, namely identifying women with low levels of all three markers used in the Triple Test. However, this was not a widespread practice and my own centre did not use it.”

31 Professor Cuckle had added:

“Modelling shows that a Triple Test carried out in a woman aged 36 has an expected Trisomy 18 detection rate of 48/52%, depending on the cut-off, when there is no explicit Trisomy 18 screening and 69-72% with explicit screening. Thus, with explicit screening there is a greater probability that a case of Trisomy 18 would be detected than not. Without explicit screening it is close to equipoise and would depend on the cut-off.
However, these rates only apply to full Trisomy 18 and in this case there was mosaicism. We do not have any information on the mean maternal serum marker levels in such cases.
Assuming that the mean is half way between the mean of full Trisomy 18 and normal pregnancies, the detection rates would fall to 32-39% without and 46/50% with explicit screening. So there is a smaller probability that a case would be detected than not except for one type of explicit screening when there is equipoise.”

32 As to whether the Triple Test if given to the Plaintiff, on the balance of probabilities, would have given a positive or negative result in respect of mosaic Trisomy 18, Professor Cuckle said that in relation to standard Trisomy 18, according to modelling predictions, the test would detect between 48% and 72% in women aged 36. He added that there are no published data for mosaic Trisomy and after considering probabilities concluded that the triple test would probably have given a negative result.

33 I was then referred by Mr Davies to Mr Wright’s report dated 31 January 2002, obtained by the Plaintiff. In a section headed “Detection of chromosome mosaicism by amniocentesis and the maternal serum Triple Test screening”, Mr Wright explained:

Amniocentesis has been the gold standard for detection of chromosome abnormalities since the early to mid-1970’s. The procedure is typically performed in the second trimester of pregnancy, around 16-18 weeks gestation, although earlier procedures (Early Amniocentesis) have been performed within the latter half of the first trimester, usually between 12-14 weeks gestation. Indications for amniocentesis can include advanced maternal age, previous pregnancy affected by a chromosome abnormality, a family history of a chromosome abnormality, maternal anxiety, abnormal ultrasound scan and abnormal maternal serum screen testing (high-risk result). The maternal serum “Triple Test screening is also offered around the same time between 16-18 weeks of pregnancy.”

34 Later Mr Wright referred to maternal screening:

Maternal serum screening tests for chromosome abnormalities such as the Triple Test are a non-invasive way to identify those women who have a high risk of carrying a pregnancy affected by a chromosome abnormality. The
Triple Test was originally primarily used to screen pregnant women for Down syndrome (trisomy 21). The Triple Test is a biochemical-screening test performed on a blood sample (maternal serum) taken from the pregnant mother between the 16-18 weeks of pregnancy and assays the levels of alpha-fetoprotein (AFP) unconjugated oestriol (uE3) and human chorionic gonadotropin (HCG). Trisomy 21 and Trisomy 18 pregnancies can be associated with their own population distribution profiles for these biochemical markers, see discussion below.
NOTE: Maternal serum screening tests, such as the Triple Test, are not definitive diagnoses for a chromosome abnormality, they merely help identify women who have an increased risk for chromosome abnormality. Women with a high-risk Triple Test result can then be counselled to have a more invasive and accurate test for detection of chromosome abnormalities, eg amniocentesis.”

35 After recording that search of medical literature had failed to find any report of the Triple Test identifying pregnancies with chromosome mosaicism involving chromosomes 18 or 21, Mr Wright compiled a summary which included:

“Follow up studies of amniotic fluid chromosome mosaicism on foetal blood, cord blood, cord and amnion may confirm true mosaicism in only 40-50% of cases. A large proportion of chromosome mosaicism is therefore confined to extraembryonic tissue and not representative of the foetus.
The Triple Test is a screening test, not a diagnostic test. Most Triple Test screening programs use risk-based assessment for the screening of chromosome abnormalities.
The Triple Test is reported to be capable of detecting ~60% of pregnancies affected by trisomy 21 and ~60% of those affected by trisomy 18. However, it is important to note that the same algorithm is not used for calculation of risk based results for both trisomy 21 and trisomy 18. Separate algorithms must be used. This is due to the different maternal age risks for each of trisomy 21 and trisomy 18, and the different biochemical profiles observed in each trisomy, which subsequently will affect calculation of the likelihood ratios for each biochemical marker and the final risk figures.
It is uncertain, but probably unlikely, that the maternal serum Triple Test screen is sensitive enough to identify pregnancies with chromosome mosaicism.”

36 In answering the questions “Could maternal serum Triple Test screening, together with amniocentesis have detected chromosome mosaicism involving trisomy 18? Could these findings have allowed sufficient time for termination of pregnancy?” Mr Wright said:

“The detailed discussion on Triple Test screening for Trisomy 18 may be irrelevant as the algorithm/software to include Trisomy 18 screening was not available at the time of Karen Schuler’s pregnancy in 1994.”

37 Mr Davies next referred to the opinions of Dr Ford, whose report was obtained by the Defendant when Dr Vaughan was a co-defendant. The report dated 21 May 2003 included these passages:

“This baby, Alexander, showed dysmorphic features, which defied diagnosis until 21 months of age when he was found to be suffering from Mosaic Trisomy 18 (Edwards’s syndrome).
………………………………..
No association between a low AFP and Trisomy 18 was ever suggested. This is significant given the Plaintiff’s claim of a breach of duty of care, regarding a low AFP result. This test was not performed between 15 and 17 weeks, but rather at 22 weeks gestation. The claim that the low result “was associated with the possibility of fetal chromosomal abnormality and particularly autosomal Trisomy 18” is not sustainable.
………………………………..
In 1994, women less than 37 years of age should have been offered the option of a triple test. They should have been advised that the function of this test was to identify babies at risk of Neural Tube Defect and Trisomy 21. The AFP component of the triple test was very accurate in its ability to diagnose open Neural Tube Defects. The triple test was less effective in diagnosing Down syndrome and was found to pick up around 50% of affected babies. The finding of an increased risk could then be further investigated by amniocentesis. It was not capable of detecting Trisomy 18, and the particulars of the Statement of Claim point 10 is therefore also clearly in error.
………………………………….
It is my opinion, that even if a triple test had been performed at 16 weeks gestation, this would not have lead to the likely antenatal diagnosis of Trisomy 18, especially in its Mosaic form.”

38 In light of the medical opinions I have quoted and others to similar effect, Mr Davies submitted that the Triple Test would have established nothing, even if administered following an AFP test with a low reading given when the Plaintiff was first seen at the hospital in mid May. Even if the Triple Test indicated the desirability of an amniocentesis, it would by then have been too late to abort the foetus.

39 Not only, according to Mr Davies’ submissions, is the proposed amendment futile but it would also add to the expense of the trial and cause still further delay. I was reminded of the requirement in section 56 of the Civil Procedure Act that the overriding purpose of the Act and rules is to facilitate the just, quick, and cheap resolution of the real issues in the proceedings and that the court exercising any power under the Act and rules must seek to give effect to the overriding purpose.

40 There is considerable force in the submissions of Mr Davies and, in my opinion, the preponderance of the medical evidence before me suggests that nothing flowed from the Defendant’s failure to administer an AFP test when the Plaintiff first presented herself at the hospital as, even with a low test result (which may be assumed), further testing would probably not have led to prenatal diagnosis of mosaic Trisomy 18, let alone diagnosis in time for an abortion to be safely performed.

41 However, I am not trying the case and, in my opinion, the Defendant has not brought itself within the criteria propounded by Barwick CJ in General Steel Industries set out above. It seems to me that there is some basis in the medical evidence to found an argument that on 13 May 1994, the hospital had a duty to perform an AFP test and either perform a Triple Test or at least provide advice about such a test and that there is a causative link between that breach and the damage allegedly suffered by the Plaintiff. Moreover, there is some merit in Mr Dodd’s assertion that the amendment is required “for greater certainty “ in light of the original pleading which does associate low AFP test results with possible chromosal abnormalities, and the need to conduct further tests having regard particularly to the Plaintiff’s age. Arguably the amendment now sought is no more that a refinement of the original pleading.

42 In the result, I propose to give leave for the Plaintiff to amend her claim as sought. As a consequence, I will also allow the interrogatories, following which this case should be ready for trial.

43 In my opinion, the Plaintiff should be ordered to pay the costs and I will so order, but as the matter was not argued, I will give liberty to apply in case some other order is sought.

44 I make these orders:

1. I give the Plaintiff leave to file and serve within 14 days a Second Further Amended Statement of Claim in accordance with the draft annexed and marked B to the affidavit of Brian Manning Dodd, sworn 25 September 2008.
2. I order that the Defendant within 21 days furnish replies on oath to the draft interrogatories annexed and marked A to the said affidavit of Brian Manning Dodd.
3. I order the Plaintiff to pay the Defendant’s costs of the motion.

4. Liberty to both parties to apply on 7 days notice.